Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge MANNHEIMER.

Kerry Lee Richards committed the offense of driving under the influence as defined in AS 28.35.030(a). The question raised in this appeal is whether Richards was properly convicted of felony DUI as a third offender under AS 28.35.030(n), or whether his offense was only a misdemeanor. The answer to this question turns on whether Richards's prior DUI conviction from Texas counts as a prior offense for purposes of AS 28.35.030(n).

The applicable legal test is found in AS 28.35.030(u)(4)(A). Under this clause of the statute, a conviction from another jurisdiction qualifies as a prior conviction for purposes of AS 28.35.030(n) if the other jurisdiction's statute or ordinance has elements similar to the elements of AS 28.35.030 (Alaska's definition of driving under the influence).

In Alaska, when a defendant is prosecuted for driving under the influence, the government must prove that the defendant knowingly ingested an alcoholic beverage or a controlled substance, and that the defendant knowingly operated or assumed physical control of a motor vehicle. See State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002).

The Texas law under which Richards was convicted, Texas Penal Code § 49.04, states simply that "[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." Richards argues that this Texas law is dissimilar to Alaska's because, according to Richards, the Texas law imposes "strict liability" — in that it does not require the government to prove any culpable mental state, either with respect to the defendant's act of operating or assuming physical control of a motor vehicle, or with respect to the defendant's act of ingesting an intoxicating substance.

Richards bases this argument on another Texas statute, Penal Code § 49.11(a), which declares that "proof of a culpable mental state is not required" for conviction of intoxication offenses, including driving while intoxicated. See Nelson v. State, 149 S.W.3d 206, 211 (Tex. App. 2004). But this statute does not completely describe Texas law on this point.

First, we note that Texas law imposes a requirement similar to Alaska's requirement of proof that the defendant "knowingly" operated or assumed physical control of a motor vehicle. Texas law does not expressly impose this same requirement, but Texas law recognizes the defense of involuntary conduct. Texas Penal Code § 6.01(a) states that "[a] person commits an offense only if he voluntarily engages in conduct".

In this context, "voluntariness" refers to a person's "physical bodily movements."1 In other words, Texas law acknowledges that a person can not be convicted of a crime if they were not in control of their own physical actions.2 And Texas courts have recognized that "involuntary act" or "automatism" is a valid defense to a charge of driving under the influence.3

(Under Texas law, the State need not affirmatively prove voluntariness unless the issue is raised at trial; but if it is raised, the State must disprove the theory of involuntary conduct beyond a reasonable doubt.4)

The fact that Texas law requires proof of a voluntary act does not mean that Texas law mirrors Alaska law in requiring proof that the defendant "knowingly" operated a motor vehicle. These two legal requirements are distinct: see AS 11.81.600, which requires proof of a voluntary act or omission, even when a defendant is charged with a strict liability offense.

But as a practical matter, leaving aside cases of involuntary intoxication (which we will address in a moment), there would be very few cases, if any, where an intoxicated person would voluntarily operate or take control of a motor vehicle, yet somehow fail to act "knowingly" with respect to that conduct. For this reason, we conclude that even though the Texas law does not require proof of a culpable mental state with respect to the defendant's operation of the vehicle, the Texas DUI law is sufficiently similar to Alaska's DUI law on this issue.

This brings us to Richards's argument that the Texas statute is materially dissimilar to Alaska's DUI law because Texas law does not recognize the defense of involuntary intoxication.

The courts of Texas generally hold that involuntary intoxication is not a defense to a charge of driving under the influence.5 Under Alaska law, on the other hand, a person charged with DUI can raise a defense of involuntary intoxication, and the State must then prove beyond a reasonable doubt that the defendant acted at least negligently with respect to the intoxicating properties of the ingested substance, or that the defendant came to realize their impairment but continued to drive. Solomon v. State, 227 P.3d 461, 468 (Alaska App. 2010).

Thus, there is a narrow set of circumstances where a person who unwittingly and non-negligently ingested an intoxicating substance might be convicted of DUI in Texas, but not in Alaska. But as illustrated by this Court's decision in State v. Simpson, 53 P.3d 165 (Alaska App. 2002), this difference between Texas law and Alaska law is not significant enough to make the Texas statute "dissimilar" for purposes of determining Richards's status as a repeat offender under AS 28.35.030(n).

The question raised in Simpson was whether Montana's driving under the influence statute — which, like the Texas statute, requires no proof of culpable mental state — was "similar" to the Alaska statute.6 Simpson argued that the Montana statute was not "similar" because Montana did not recognize the defense of involuntary intoxication, and because Montana punished even those defendants who performed no voluntary act.7

This Court questioned whether Simpson had correctly interpreted Montana law.8 But we held that, in any event, the Montana and Alaska statutes were sufficiently "similar" because (1) instances of involuntary intoxication are rare, and (2) a defendant raising such a defense must assert "not only that they were intoxicated, but also that they had no conscious awareness of being intoxicated before they decided to drive or assume control of a motor vehicle."9

Richards argues that our decision in Simpson does not resolve his case because the defendant in Simpson did not raise the mens rea claim that Richards raises here: the claim that any DUI statute that allows a person to be convicted without proof of a culpable mental state is not "similar" to Alaska's statute.

But as a general matter, "[a]ll that is required for . . . conviction [of] a general intent crime [such as driving under the influence] is proof of the voluntary commission of the prohibited act." Walker v. State, 652 P.2d 88, 91 (Alaska 1982). It is difficult to imagine — and Richards has not shown — how a defendant charged with driving under the influence could defeat the State's proof that their conduct was "knowing", other than by raising the defense of involuntary intoxication or the defense of involuntary conduct.

For these reasons, we conclude that the Texas statute is sufficiently "similar" to Alaska's DUI statute, and that the superior court could properly consider Richards's DUI conviction from Texas when the court assessed Richards's status as a third offender under AS 28.35.030(n).

The judgement of the superior court is AFFIRMED.